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DUNCAN v. UNION PACIFIC RAILROAD COMPANY

March 20, 2002

LESLIE DUNCAN, AS PERSONAL REPRESENTATIVE FOR THE DECEDENT DAVID DUNCAN, PLAINTIFF,
V.
UNION PACIFIC RAILROAD COMPANY, DEFENDANT. UNION PACIFIC RAILROAD COMPANY, DEFENDANT/THIRD PARTY PLAINTIFF, V. AIRPORT INN, CFR, INC. THIRD PARTY DEFENDANT.



The opinion of the court was delivered by: Jeanne E. Scott, United States District Judge

ORDER

This matter comes before the Court on Defendant Union Pacific Railroad's (Union Pacific) Motion for Summary Judgment (d/e 15) and Defendant Union Pacific's Request for a Hearing on the Motion for Summary Judgment (d/e 17). The Court has determined that a hearing is not necessary in this case since the issues have been well briefed. Therefore, Union Pacific's request for a hearing is denied. Decedent David Duncan was not acting as Union Pacific's employee at the time the accident occurred; therefore, he is not entitled to recovery under the Federal Employers Liability Act (FELA). 45 U.S.C. § 51. Union Pacific's Motion for Summary Judgment is therefore allowed.

FACTS

Leslie Duncan is David Duncan's widow and is bringing this action as David Duncan's (Duncan) personal representative. At the time of his death, Duncan was employed as a welder in the Maintenance of Way Department of Union Pacific. In this job, Duncan worked as a member of Gang # 9114. This gang was responsible for maintaining and repairing Union Pacific's track, rails and adjoining structures. Duncan was employed as a member of a mobile gang, which meant that he was required to report to various locations for work, depending on where his gang was scheduled. Duncan's permanent home was in Lincoln, Illinois, but his geographical work area included Missouri, Arkansas, Louisiana, Kansas and Texas. Duncan's job consequently required him to travel and spend many nights away from home.
At the time Duncan was employed by Union Pacific, Union Pacific had a collective bargaining agreement with the Brotherhood of Maintenance of Way Employees. Ex. 4. As a Maintenance of Way employee, Duncan was subject to this agreement. This agreement provided that Maintenance of Way employees would receive a per diem for meals and lodging while working away from their permanent residence if meals and lodging were not provided by the railroad. The agreement did not state that employees had to stay at particular hotels or motels. Union Pacific did not provide Duncan with meals and lodging. Instead, it paid Duncan $37.00 each day in per diem expenses.
Garcia stated that on July 10, 1997, the gang got off work at about 3:30 p.m. Duncan and Garcia went back to the Airport Inn. Garcia also said that it was a very hot day so he went to the motel room to take a shower. Duncan told Garcia that he was going to the motel swimming pool. After taking a shower, Garcia went to the pool and found that Duncan had drowned. Duncan had previously told Garcia that he could not swim. Duncan's wife also indicated that he could not swim.

In her Complaint, Plaintiff alleges that at all times while Duncan stayed at the Airport Inn, the Airport Inn was Union Pacific's agent. Plaintiff contends that Duncan's injuries and death were caused by the negligent acts of Union Pacific and its agents because they:

(a) Failed to provide decedent with a reasonable safe place to work; or
(b) Failed to provide reasonably safe conditions for work; or
(c) Failed to furnish decedent with sufficient help; or
(d) Failed to properly protect its employees from the dangerous condition of the pool; or
(e) Failed to provide proper warnings of the dangerous condition of the pool; or
(f) Failed to provide decedent with a safe place to lodge in that the pool was defective and failed to meet ...

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